Chief Justice Warren E. Burger: We'll hear arguments first this morning in Andrus, the Secretary of Interior against Idaho.

Mr. Smith, you may proceed whenever you're ready.

Mr. Stuart A. Smith: Mr. Chief Justice, may it please the Court.

This case comes here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

It presents the question whether the Carey Act of 1894 requires the Secretary of Interior indefinitely to reserve from appropriation for other public or private uses, some 2.4 million acres of desert land within Idaho for the eventuality that the State may be able and willing to select all or any part of such acreage for irrigation and reclamation under this statute.

The statute is set forth at pages 2 through 5 of the petition.

Its language, in our view, is clear and direct.

It authorizes the Secretary of Interior with the approval of the President is, as the statute says, authorized and empowered upon proper application of the State to contract and agree from time to time with each of the States to enter into contracts with the States which will then be binding upon the United States to donate grant and patent to the State certain desert lands not exceeding a particular amount of acreage in each State on the condition that the State covers them to be irrigated, reclaimed and occupied.

The statute provides that after the Secretary approves the State's application for grant, the land is then segregated from the public domain for a period of three to 15 years to permit the State to undertake the required reclamation and irrigation.

Justice William H. Rehnquist: Mr. Smith, you say that the question presented is whether the Secretary of Interior must reserve indefinitely the 3 million acres reserved or mentioned in the Carey Act.

Actually, all we have before us in this case is 27,000 -- an application for 27,000 acres.

Mr. Stuart A. Smith: Well, that's the way the -- Mr. -- Mr. Justice Rehnquist, the case originally arose on the -- on the State's application for 27,400 acre tract to reserve that under the temporary withdrawal statute of 1910 which permits the State to ask for a temporary segregation in advance of a plan.

The -- that application was rejected by the Bureau of Land Management on the -- for the reason that the -- that some -- some of that land was being used for stock driveway purposes.

The State then appealed that determination to the Interior Board of Land Appeals.

And that -- and that body that administrative body within Interior affirmed and rejected the State's argument which in part was focused on the -- on that particular tract but the State then began to make the broader argument that it was entitled to have a reservation of its maximum quota under the Act.

While the case was pending in the Interior Board of Land Appeals, the State brought this action in the District Court of Idaho for -- to withdraw declaratory relief.

And specifically, it asked for a declaratory judgment that the State has an absolute right to demand up to 3 million acres of desert land, and that the Board of Land Management -- the Bureau of Land Management, that is, has no discretion to deny request for segregation of desert lands.

So, the case, well, you're right that the case originally arose out of this narrow application, but it became -- it became broader as the State requested broader relief, a relief which the District Court granted and which the Court of Appeals affirmed.

Justice William H. Rehnquist: The -- the State is bound by the case or controversy and all the other related requirements of Article III, the same way any other litigant in its --

I think that there is a case of controversy here, because the judgment of the -- of the Court -- of the District Court as affirmed by the Court of Appeals since before this Court requiring the Secretary of Interior to -- to withdraw and -- you know to withdraw -- you know to manage the public lands in a way to ensure that Idaho will ultimately get its 3 million acre quarters.

In fact the -- the judgment says that Idaho is entitled to have withdrawn and patented 3 million acres providing that (a) that they're all lands of such character in kind, and that the State fulfills the condition.

So there is -- I think the controversy between the parties is now over, you know, the propriety of this judgment.

Although I agree with you that originally, the case started with this application for a withdrawal of a particular tract.

Justice William H. Rehnquist: But what if we were to say that the Secretary's action in declining the 27,000 acres where a request was perfectly proper.

If it's reviewable at all, would we then have to go and expatiate the way the District Court and the Court of Appeals --

Mr. Stuart A. Smith: I think that -- I think that you would have to go on to the extent that we have this judgment binding the Secretary of Interior to reserve, you know, on the event -- the 3 million acres on the eventuality --

Justice Byron R. White: (Voice Overlap) if we just make a judgment, that would get rid of it, wouldn't it?

Mr. Stuart A. Smith: Indeed, it would get rid of it, although, I think, you know, I think that there is a -- you know, a case or a controversy between the parties as to the -- as to the meaning of the Act and because I think that the -- the State has brought a lawsuit.

I think -- you know, I think the chronology of it is such that the case arose out of the particular application for the 27,400 acre tract.

Justice Byron R. White: Do you think the -- do you think the District Court held that if -- and the Court of Appeals that if -- that if the Secretary has withdrawn and put to other federal uses, all the public lands.

So, there is not -- none of the -- none of the 3 million is left, it's all been withdrawn, all have been put to some of these for stock driveways or something.

The District Court did say that -- that the Secretary must entertain a petition for reclassification, right?

Mr. Stuart A. Smith: Yes.

Justice Byron R. White: And that he could not arbitrarily deny it.

But he didn't -- the District Court didn't hold that he had the grant of reclassification.

Mr. Stuart A. Smith: Oh, but I think -- I -- I think that the -- I think that the fact that the District Court and, you know, granted the States -- you know, request for the prayer for declamatory relief ordering the Secretary to have withdrawn, that Idaho was entitled to have withdrawn and patented 3 million acres of land.

I think that from the Secretary's point of view, if he were to allocate public lands for other purposes under the host of other federal statutes that -- that he administers for all the public domain, and that the --

Justice Byron R. White: And so answer your to my --

Mr. Stuart A. Smith: -- quarter acre go below 3 million, I think --

Justice Byron R. White: -- your answer --

Mr. Stuart A. Smith: -- I would violate the judgment.

Justice Byron R. White: Your answer to my question is that yes, the District Court did hold that --

Mr. Stuart A. Smith: Yes.

Justice Byron R. White: -- he would have to reclassify or --

Mr. Stuart A. Smith: Yes.

Justice Byron R. White: -- or --

Mr. Stuart A. Smith: -- I think that's --

Justice Byron R. White: -- withdraw this land.

Mr. Stuart A. Smith: I think that's right.

I think that's right.

I think -- I think that the correctness of that is before the Court.

Justice William H. Rehnquist: Do you think that the day after the Carey Act was passed, Idaho could've gone in the Federal District Court in Idaho and asked for -- to serve of a declaratory judgment not that it was ready with any plan but just requiring the Secretary to make sure it didn't let the original 1 million acres go?

Mr. Stuart A. Smith: Well, if the Idaho -- you know I think, we would take the position that Idaho would not be entitled to, you know, that kind of relief.

But I don't see any -- any, you know, anything that would, you know, prevent Idaho from doing it, and if a court, like this District Court so hold, I think that the Secretary would be before reviewing court the way we have petitioned here.

Justice Byron R. White: Yes, but not assured.

To put it in other way, the -- as I understand it, the Government's claim is that if the day after the Carey Act was passed, Idaho came in and asked for anything whether 3 million acres or not or even if it said it was ready and satisfied all the conditions that the Secretary has discretion to say no to Idaho.

Mr. Stuart A. Smith: Exactly.

Exactly.

Justice Byron R. White: And it doesn't need to reserve anything, no matter how much land is available.

That's your position.

Mr. Stuart A. Smith: That's our position.

Justice Byron R. White: And if -- if that is your position, it seems -- it seems to me that Idaho certainly has a -- has a case or controversy with you.

Is this the --

Mr. Stuart A. Smith: Yes.

Justice Byron R. White: -- is this to view the Government expressed Idaho in the administrative proceedings?

Mr. Stuart A. Smith: Is this the view that the Government expressed Idaho in the administrative proceedings?

Yes I mean the --

Justice Byron R. White: Yes.

So -- so Idaho said, “We should really get this settled.”

Mr. Stuart A. Smith: Exactly.

Justice Byron R. White: As long as at least -- as long as some land is on withdrawn, at least as long as there are some available.

We are entitled to it.

And you say -- you say absolutely not --

Mr. Stuart A. Smith: Exactly.

Justice Byron R. White: -- in complete discretion.

Mr. Stuart A. Smith: Exactly.

The argument was framed below where the State was arguing that the Carey Act gave it, you know, the day it was enacted gave it an absolute right to 3 million acres and that this right --

Mr. Stuart A. Smith: The District Court rejected the argument that the --

Justice John Paul Stevens: That there was present grant (Voice Overlap) --

Mr. Stuart A. Smith: That there was in present a grant of --

Justice John Paul Stevens: Is there a word in the District Court's opinion about the issue you're arguing here?

Mr. Stuart A. Smith: Yes.

Justice John Paul Stevens: I know there is in the judgment but in its opinion.

Mr. Stuart A. Smith: I think so.

Justice John Paul Stevens: And you think so.

Mr. Stuart A. Smith: If you look on -- if may I refer the Court to page 18A of the appendix to the petition, where the Court says that in -- in presenting a grant of title did not occur under the Carey Act seems quite clear from the language of the Act, the legislative history, administrative interpretations and court interpretations all be a dicta.

It is likewise clear, however, that the Carey Act in subsequent enactments conferred upon the State of Idaho a right of entitlement to 3 million acres of desert land for irrigation etcetera.

And I think that's -- that's in the opinion.

Justice John Paul Stevens: They didn't argue that in your point.

Their theory, as I understood it, was that they had a present grant of 3 million acres, and the Court rejected that argument.

Mr. Stuart A. Smith: That they had a present grant of 3 million acres -- well, I mean, the District Court interpreted the -- you know, their claim to and then present a grant as --

Justice John Paul Stevens: So that's what they allege.

Mr. Stuart A. Smith: -- their right to a -- you know, a particular 3 million acres and said that the State didn't have a right to any particular 3 million acres, but it does have a right to 3 million acres of suitable desert land, and that the Secretary has to manage the --

Justice John Paul Stevens: This argument was weighed -- made, as I understood it, to say that the 27,000 acres that had been preempted for highway rights away or something like that, I forget what it was, that that preemption by the Secretary was invalid -- reservation by the Secretary was invalid because it had -- the land had previously been made available to the State.

Wasn't that their position?

Mr. Stuart A. Smith: No.

No.

Their position was on that -- the position on the -- they did appeal.

Their in presenti argument went to the 27,400 acre thing.

They said basically that they had a right to that -- I think perhaps we're saying the same thing.

That they did have a right to that particular land and they -- and they appealed to the Court of Appeals, you know, on there and present a grant.

But the -- but the Secretary also appealed to the Court of Appeals saying that the District Court was wrong in saying that they had any right to any particular acreage.

Justice John Paul Stevens: How much is available still, some 11 million acres, isn't there?

Mr. Stuart A. Smith: There are some 11 million acres, I think, total overall the -- overall the States that the Carey Act touches.

Justice John Paul Stevens: How can this controversy be right until some unreserved acreage is requested by the State and the Secretary refuses to -- to make the (Voice Overlap) --

Mr. Stuart A. Smith: I think, Mr. Justice Stevens, that the controversy is right to the extent that the -- that the State has asked the District Court and the District Court has granted this declaratory relief essentially.

Justice John Paul Stevens: And supposing you vacated the territory relief and start all over, how would anybody be heard?

Couldn't we -- wouldn't -- shouldn't we presume that the Secretary will and do, of course, if there's acreage available give it to the State when they request it in a proper way?

Mr. Stuart A. Smith: That -- that may well be --

Justice John Paul Stevens: (Voice Overlap) --

Mr. Stuart A. Smith: -- and then they will not be, because as -- I think we point out and argue at great length and there are host of federal statutes and Secretary has to manage federal -- you know, this public domain under variety of statutes.

I think that this -- I think that to the extent that the parties and that the Western States need clarifications to meaning of the Carey Act can't be --

Justice John Paul Stevens: Well, why do they need it until they've asked for some land that they haven't been allowed to get?

Mr. Stuart A. Smith: Well, in this particular case, the second --

Justice John Paul Stevens: And their complaint didn't --

Mr. Stuart A. Smith: Yes.

Justice John Paul Stevens: -- raise this issue as I read it.

Mr. Stuart A. Smith: Well, I think the complaint did raise the issue in the sense that it -- it talked about --

Justice John Paul Stevens: Which count of the complaint raise this issue?

Mr. Stuart A. Smith: I think the first count of the complaint because I think the second count of the complaint went to the --

Justice Potter Stewart: I think their complaint isn't in the appendix.

There was a present grant of 3 million acres and they -- and the District Court rejected that.

Mr. Stuart A. Smith: Yes.

But I -- looking at page 5, this is the defendant's age and he's notified plaintiff.

He will not allow request segregation was wrong to the Carey Act as a matter of right.

The defendant's specific alleges the -- it has the authority to determine what lands are suitable for disposal under the Carey Act even though lands refuse to be granted on fact desert unsuitable for agricultural use and settlement etcetera.

The plaintiff believes that these lands are subject to temporary withdrawals.

I think that -- you know, I think that the issue is -- is joined before --

Justice John Paul Stevens: (Voice Overlap) plaintiff believes that the defendant intends to and has violated the contract established by the Carey Act to convey this land.

And the violation of the contract was by reserving 27,000 acres for cattle.

Mr. Stuart A. Smith: Well, that was the -- you know, the controversy -- the controversy was -- it was --

Justice John Paul Stevens: (Voice Overlap) -- on the 27,000 acres this -- there would be no lawsuit here.

Mr. Stuart A. Smith: I think -- what?

Justice John Paul Stevens: I don't see how you could just bring in a lawsuit.

Say, you got 11 million acres available and we want to know for sure that you're going to save 3 million acres for us, why don't they just ask for the 3 million acres?

Justice John Paul Stevens: Those that were identified, the Court has held they're not entitled to.

Mr. Stuart A. Smith: Exactly.

But I think -- I think the difference between the administrative proceeding and this lawsuit can be best highlighted by the fact that while the State -- while this thing was -- while the administrative action was pending in the Interior Board of Land Appeals, the State brought this action for broader declaratory relief and its that relief, I think, that the District Court grappled with and determined was appropriate.

It did reject the in present their argument, but it did nevertheless hold and I think that the opinion couldn't really any be clearer that -- that the Carey Act confers upon the State of right of entitlement to 3 million acres.

It's the -- it's that the -- it's -- it's the seriousness of that judgment.

They've caused us to petition.

Justice John Paul Stevens: I agree with you.

That judgment says that you're correct.

You -- you correct me --

Mr. Stuart A. Smith: Yes.

Justice John Paul Stevens: -- it's in the --in the opinion.

But why wouldn't it be a proper disposition of the case to do what Mr. Justice Rehnquist I believe suggested, simply vacate the judgment --

Mr. Stuart A. Smith: I --

Justice John Paul Stevens: -- say if the problem never becomes right but there will be plenty time to litigate it.

Mr. Stuart A. Smith: I could not -- I could not state to you with complete certainty that that would not be an appropriate thing to do, but I can say to you, number one, that we think that the broader relief that the State has requested and the broader relief that the District Court has -- has granted, has put this question before the Court.

The -- since, since this cases come, the Board of Land and -- the Bureau of Land and Management has rejected two State applications for -- from Idaho for -- since the District Court decision under the Carey Act.

Our petition makes reference to the fact that --

Justice John Paul Stevens: And those are the ones that were totally vacant and unreserved (Voice Overlap) --

Mr. Stuart A. Smith: Right.

And since that -- there was also -- there was also brewing in Nevada, as we point out in the footnote in our petition, a host of applications that are getting ready to be filed.

And I think that the -- I think that the --

Justice John Paul Stevens: Did the Secretary give reasons for rejecting those applications or he'd take the position we have an arbitrary right to reject anything (Inaudible).

Mr. Stuart A. Smith: Well, I think that the Secretary's -- the -- I don't think the Secretary has to give reasons, I don't think --

Justice Byron R. White: Well, Mr. -- in -- even if you shave this lawsuit down to the 27,000 acres that the -- that -- that Idaho identified, as I understand you, the District Court held that in that effect is that Idaho was entitled to the 27,000 acres.

Mr. Stuart A. Smith: I think in that -- I think in that effect of the District Court's judgment has to be read that way, because --

Justice Byron R. White: Alright.

Alright.

And -- and you say that -- that Idaho is not entitled to it at all.

Mr. Stuart A. Smith: Idaho is not entitled to it.

Justice Byron R. White: You not -- 27,000 and --

Mr. Stuart A. Smith: Or anything.

In fact --

Justice Byron R. White: But at least you think the District Court held that they're entitled at least to the 27,000 acres?

Mr. Stuart A. Smith: I -- I think that's a fair reading but --

Justice Byron R. White: And you say they're not -- not because you had already set it aside for some -- for some stock purposes but because you just have complete discretion.

Mr. Stuart A. Smith: Exactly.

Exactly.

And I think that -- you know, I think that -- I think that --

Justice Byron R. White: Well, if we -- so, the 27,000 acre issue involves the very issue that you won't decide and -- and that Idaho must decide it.

Mr. Stuart A. Smith: I think that's right.

I think that's right.

Justice John Paul Stevens: Now, I'm --

Mr. Stuart A. Smith: I think that --

Justice John Paul Stevens: -- totally baffled because I read the District Court opinion to reject Idaho's claim that the 27,000 acres and his judgment to reject.

Mr. Stuart A. Smith: Well, I think --

Justice John Paul Stevens: Is that wrong?

Mr. Stuart A. Smith: -- I think -- I think the District Court went -- I think the District Court ordered the -- you know -- I think Idaho has to go back for -- and petition for reclassification of the 27,000 under the Carey Act.

That was -- that was the impression -- that was the impression I got from the District Court.

Justice William H. Rehnquist: Certainly, that's the intimation at the bottom of page 18A of the petition where the District Court has -- however, the State may not perfunctorily select acreage previously withdrawn for other purposes such as in this case withdraw for stock driveways.

The District Court wasn't saying the Idaho's application in this case should have been granted.

Justice Byron R. White: You just said that it should not be arbitrarily denied.

Mr. Stuart A. Smith: Should not be arbitrarily denied.

Justice Byron R. White: And you say that -- and your -- your issue with the District Court is that -- that you shouldn't --

Mr. Stuart A. Smith: We shouldn't have to --

Justice Byron R. White: -- you -- you shouldn't be subject to any petition for reclassification.

Mr. Stuart A. Smith: Exactly, because our -- our view of the matters that the Secretary has complete discretion as to whether the grant application is under the Carey Act.

Justice William H. Rehnquist: Well, is -- is that really a -- a case or Article III lawsuit where the Government says, “We ought to win on this ground.”

And the District Court says, “You ought to win on a narrower ground”?

Mr. Stuart A. Smith: Well, I think -- I think there's still a controversy between the parties.

Justice Byron R. White: The District Court would subject to further procedure -- procedures with you say you shouldn't be subjected.

Mr. Stuart A. Smith: Absolutely.

And I think under this particular judgment, the Secretary is -- is now bound to administer all the statutes within I to making sure that it doesn't invade this so-called “quarters” under the Carey Act.

And in our view that's a -- that -- you know that is an impossible narrowing of his discretion under -- for example the -- the latest Federal Management Land Policy Act of 1976 which is suppose to charge the Secretary with putting all the public domain to the best possible uses.

It wouldn't be impossible for him to do that knowing that he had his Damocles in Carey Act sword over his head which would require him to reserve this desert land for -- for the eventuality.

Justice John Paul Stevens: The sword as I -- they still got 11 million acres that are available.

Mr. Stuart A. Smith: Oh, no, but 11 -- that's 11 million acres, I think, across the board without all this through -- throughout all the States.

Justice John Paul Stevens: How much is there in Idaho?

Mr. Stuart A. Smith: I think -- I'm not really sure how much there is in Idaho.

Justice John Paul Stevens: Well, a lot more than 3 million acres.

Mr. Stuart A. Smith: Yes.

But I mean, presumably, even if there is lot more than 3 million acres, I think, if the Secretary would allocate --

Justice John Paul Stevens: Any allocation that, as I understood it, that was imposed under the Government to save at least 3 million acres.

Mr. Stuart A. Smith: Yes.

But, Mr. Justice Stevens, assuming, you know -- if the -- if the Secretary would allocate lands -- desert lands for a lot of other purposes under -- under a variety of other statutes, he would still have to make sure that he kept at least 3 million acres.

And you know, I've -- we think that --

Justice John Paul Stevens: But there's no present indication he intends to do that, is there?

Mr. Stuart A. Smith: But -- you know --

Justice John Paul Stevens: As long as there -- I thought it was 11 million acres, maybe I'm wrong, I don't know.

But as long as there, you know, three or four times much land as might be needed to fulfill the -- the commitment made in 1894, assuming there was a commitment or the -- the tender, whatever you might describe it, I just don't see any Damocles and sword over anybody.

They -- if they came in and asked for some land and the Secretary turn it down, sure you get a lawsuit.

Or if he said, "I can handle --

Mr. Stuart A. Smith: And I think that's exactly --

Justice John Paul Stevens: -- all the rest of it."

Then they may want to (Voice Overlap) --

Mr. Stuart A. Smith: I think that's exactly -- you know, I can't believe the point but I think -- I think that's exactly what happened there.

They came in an essence of land, the Secretary turned them down, then we do have a lawsuit.

Justice John Paul Stevens: And of course, he had turned them down properly.

Mr. Stuart A. Smith: And we say, we -- we turn them down properly, and they say that their -- their point is that in 1894, when Congress pass the statute that they had a -- they had a -- a right to the code, and the Secretary says no.

Because -- in fact, while there are host of statutes now, even in 1894, there was the Desert Land Act of 1877.

And the Secretary presumably --

Justice John Paul Stevens: It shows how ripe this case, even the same issue has been available for 40 or 50 years, there is no problem arose --

Mr. Stuart A. Smith: Well, the problem arose --

Justice John Paul Stevens: -- in three years.

Really

Mr. Stuart A. Smith: Well, the problem -- the problem is before the Court really because of the technology.

Justice John Paul Stevens: Because of the 27,000 acres application was denied.

Mr. Stuart A. Smith: No, I was going to say that the problem -- the problem has become more current than needs resolution because the -- because the deep well technology has made irrigation much more feasible.

I mean, there haven't been any Carey Act grants since the 1930s.

And there is -- and the reason was because most of the desert land that existed -- existed, you know, it was there and it was unarguable.

Well, I -- I don't think that -- you know, there's anything more to say on the case of conspiracy point.

I simply want to say that our argument rest on three prongs which we think convincingly refute that the District Court's decision -- that the Court of Appeals' decision is incorrect.

That the plain language of the statute gives the Secretary discretion, I need only point to pages 2 to 5 of the petition which talks about authorizing and empowering the Secretary upon proper application.

It talks about entering into a contract which then becomes binding upon the United States.

The statute itself, doesn't talk about a binding right, they are a host of land grant statutes that give absolute grants.

This is not one of those statutes.

The Swamp Land Act of the 1850s was such an absolute grant, and the legislative history specifically distinguished that kind of statute from this kind of a statute.

May I also point out to the Court that the second paragraph on page 3, the petition talks about before the application of any State is allowed.

The clear implication of that language is that an application of a State may not be allowed.

And in fact in 1908, the reports of the Secretary of Interior were replete with statistics indicating that many applications where denied.

And there's any question that -- that the people realized and people in the Western States realized that applications under the Carey Act could be and were being denied routinely.

Justice William H. Rehnquist: Do you think that the Secretary has the power to deny without any judicial review under the Overton Park theory that there is simply no standard set forth by which you may determine whether they grant it or deny it?

Mr. Stuart A. Smith: I think -- I think that's the proper standard.

I think it's a question of sort of -- you know where the Secretary is being arbitrary and capricious.

I don't know if the Secretary could announce that he's not taking any applications from Idaho.

Justice William H. Rehnquist: Well, the -- then you -- he -- do you think his action in denial could be reviewed under the APA?

Mr. Stuart A. Smith: I think it can be, but under a kind of an arbitrary and capricious standard.

And then finally, let me --

Justice Byron R. White: But you -- but you say that -- I get it -- I get to -- I get from you that the Secretary needn't give any reason at all.

Mr. Stuart A. Smith: I think that's --

Justice Byron R. White: He did deny.

Mr. Stuart A. Smith: I think that's right.

The Secretary needn't give any reason but I think that our reviewing court would have to --

Justice Byron R. White: He didn't even claim that the land is presently been withdrawn for some other use or that the -- or that the United States has any plans for its use.

Mr. Stuart A. Smith: Well, yes.I think the implication is that the Secretary, you know, has to administer they (Voice Overlap) --

You entertained the petition and this -- you -- you take the petition, you just shrug your shoulders and say, “Sorry --

Mr. Stuart A. Smith: I don't -- well, I don't think that we could --

Justice Byron R. White: -- sorry, Idaho but --

Mr. Stuart A. Smith: I don't think it liquidates the Carey Act.

I think the Secretary is -- is required by instances the Act is still on the book.

Justice Byron R. White: He's required to read the petition.

That's all.

Mr. Stuart A. Smith: He was required to give a good faith -- good faith consideration of the petitioner.

Justice Byron R. White: Well, yes, but you -- but he -- he didn't give any reason for denying.

Mr. Stuart A. Smith: I think that's right.

I think that's right, but I think that --

Chief Justice Warren E. Burger: Then how would anyone know whether it was arbitrary and capricious if he didn't gave any explanation.

Mr. Stuart A. Smith: Well, if you --

Chief Justice Warren E. Burger: How do you -- how you prove?

Mr. Stuart A. Smith: Well, I think what you have to do is examine the panoply of all the statutes of the Secretary, and if there's a reasonable basis for -- for inferring that the Secretary had or could have all the plans for the development of the -- of this -- of this land.

But I don't think that it's -- I don't think the Act requires him to say so.

Justice Thurgood Marshall: You said he has to have administrative record?

Mr. Stuart A. Smith: Does he have to have administrative record?

Yes, there is an administrative record in this case.

And presumably --

Justice Thurgood Marshall: Is that required?

Mr. Stuart A. Smith: Presumably this -- this --

Justice Thurgood Marshall: Is that required?

Mr. Stuart A. Smith: Under the Act?

Justice Thurgood Marshall: Or can he -- can he just say no without an administrative record?

Mr. Stuart A. Smith: I think he can say no, but there is an administrative record and I think that, you know, during the administrative proceedings, the Secretary, I think, you know, may well volunteer reasons as to why -- as to why a particular applications --

Justice Thurgood Marshall: But he can't -- he couldn't done without an --

Mr. Stuart A. Smith: But I think he could do it without -- I think --

Justice William H. Rehnquist: What if the Secretary simply said, the Carey Act is an authorization and nothing more, and I just don't choose to allot under the Carey Act.

I realize I could, but I -- I just don't feel like doing it.

Would that be an adequate response?

Mr. Stuart A. Smith: Well, that would depend.

I -- I don't think he could say, “I don't feel like allotting anything under the Carey Act.”

But I think he could say, “I don't want to make this -- grant this application under the Carey Act."

I think all that the Act requires him to do is to get a good faith, you know, consideration of any Carey Act application.

Congress, you know, in -- in 1976 --

Justice Byron R. White: (Voice Overlap) --

Mr. Stuart A. Smith: -- addressed the question as to -- what?

Justice Byron R. White: We don't know.

Mr. Stuart A. Smith: I think that the -- I think that the words of the statute, I think that's what they -- I think that's what they connote.

I just want to close by saying that I think that the -- the consisted administrative interpretation also confirms our argument that the -- that the Secretary has discretion.

And if the Court has no further questions, I would like to save a few moments for rebuttal.

Justice Thurgood Marshall: (Voice Overlap) that Congress can give to one person the untrammeled, uncontrolled discretion to give away my land, without giving any reason for it.

Mr. Stuart A. Smith: Well, I would put the other way, that Congress can give the untrammeled discretion of a particular individual to preserve the public domain for the best purposes.

Justice Thurgood Marshall: Or he can give it away.

Mr. Stuart A. Smith: Or he can give it away and use it according to his best lights, according to his best -- the best uses.

Thank you.

Chief Justice Warren E. Burger: Mr. Attorney General.

Argument of David H. Leroy

Mr. David H. Leroy: Mr. Chief Justice and may it please the Court.

This is a case both novel and surprising novel and that the Carey Act was a noble experiment, a one of a kind statute unique in concept in 1894 and never again duplicated.

Novel in that unlike most federal statutes, it's only been before this Court once in its 84 years of existence, and surprising in that the Act is before the Court again at all.

And that in 1970 the Department of Interior felt that the Act was so obsolete and useless said it repealed all of the Carey Act regulations assuming that they'd never be used again.

As the Solicitor made a brief reference, technology and advances, and deep well, and in sprinkler systems have now restored some possibility of achieving the original congressional purpose and offer an opportunity to offset something up to 2 million acres per year lost and farmland every year.

Justice Byron R. White: Have they discovered some -- apparently they have some deeper aquifers in -- in Idaho that they want to tap.

Is that --

Mr. David H. Leroy: Mr. Justice White, there is continuing investigation in review of those aquifers in a number of context and more is being learned about them everyday.

But the technology and the efficiency and the economy of drawing water and well more cheaply and sprinkling it more effectively is the chief reason that brings life back into this Act.

We would urge that this is a case of statutory interpretation and that the Carey Act granted no such absolute discretion as the Solicitor describes to the Secretary.

We would urge that there is a -- an actual case or controversy right for consideration, and that the denials of this -- of this particular application even though it'd be on reserve land, where in fact as the IBLA ruled based upon an absolute secretarial discretion which the Secretary suggested, flowed from the language, the history and the intent of the Carey Act itself.Perspective on the Carey Act is simple.

The Congress in 1894 had both the --

Justice John Paul Stevens: Let me just clarify this one.

On the particular land that was subject to the application in dispute in this case, does Idaho still contend that it's entitled to have that -- those 27,000 acres conveyed pursuant to the Carey Act?

Mr. David H. Leroy: Your Honor, the -- the basis for denial of those acres --

Justice John Paul Stevens: You -- you said, they gave the wrong reason.

I understand that.

Mr. David H. Leroy: -- was the Secretary's discretion.

Justice John Paul Stevens: But do you contend --

Mr. David H. Leroy: But --

Justice John Paul Stevens: -- you're entitled to those 27,000 acres?

Mr. David H. Leroy: What the District Court suggested is that we have an opportunity to go back in and should have if the Carey Act is properly interpreted to petition for reclassification which Idaho would do.

But the Secretary says that he has the absolute discretion and will not permit us even to go back under the reclassification procedure thus an actual case or controversy is framed.

Justice John Paul Stevens: Well, I'm still not quite clear on your answer to my question.

Is Idaho still contending that it has a right to these 27,000 acres?

Mr. David H. Leroy: Idaho would contend, Your Honor, yes, that -- that we have the right to do as the District Court instructed us to do, to petition for reclassification, and the Secretary would contend that we have no such right because he exercises unfettered discretion.

Justice Byron R. White: On the merits of this question, are you -- do you claim that you should -- that that reclassification must be granted --

Mr. David H. Leroy: We claim as the District Court suggested --

Justice Byron R. White: -- on this 27,000?

Mr. David H. Leroy: We -- we would so claim yes.

But it would be upon -- based upon evidence and material presented that reclassification hearing.

The proper perspective of Carey Act --

Justice Byron R. White: Well, do you -- you deny then that a withdrawal by the Secretary for another use for the United States is enough to defeat a Carey Act claim?

Mr. David H. Leroy: Yes, we would per se when the Secretary --

Justice Byron R. White: Would you do?

Mr. David H. Leroy: We do, when the Secretary -- especially when the Secretary per se, contends that he has no authority.

Justice Byron R. White: What if his claim was "Well, you don't get this land because we've already withdrawn it for some other purpose," and that's enough of a reason.

Mr. David H. Leroy: Then we would not so -- we would not so contend that we would be automatically entitled to the land because we have rejected of the in present theory which we presented to the District Court.

We suggest now that the Carey Act is a conditional grant, conditioned upon the performance of -- of certain conditions which the Congress specifically outlined in 1894.

Mr. David H. Leroy: Let me pursue it because I want to be sure that I understand your position.

It would be your view that you could get the 27,000 acres by filing a petition for reclassification.

The issue in that proceeding would be whether or not, the 27,000 acres had been properly withdrawn for stock driveway purposes.

Rebuttal of Stuart A. Smith

Mr. Stuart A. Smith: Yes.

And -- and the --

Justice John Paul Stevens: I see.

But then, if the -- if the withdrawal for those purposes was authorized by statute and it was not an abuse to discretion, then you would concede, as I understand it, that you would have no Carey Act right to those 27,000 acres.

Rebuttal of David H. Leroy

Mr. David H. Leroy: That's correct.

Justice Byron R. White: Well -- well, then, suppose the Secretary had withdrawn for stock purposes or for all sorts of things all but 2 million acres of the public land in Idaho and then Idaho came in and made a -- and made a present claim for 3 million acres.

And suppose that all of those -- all the withdrawals had been authorized by statute and where as fair as this withdrawal was supposedly.

I -- I take it you wouldn't -- I take it you would concede that Idaho wouldn't be entitled to its full 3 million acres.

Mr. David H. Leroy: We would suggest at that point, yes, Your Honor, that we would have been disadvantaged.

Though, we would suggest unfairly in that the Carey Act and this entitled to flowing from the Act of 1894 should have been originally considered when the Secretary went through the machinations of -- and -- and considerations in all those other reservations.

And in addition, it's important to note that it is not likely or possible or feasible for a block of 3 million acres to be sought under the Carey Act, and it's also important to note that there is no such sword hanging over the Secretary to make and discomfort his -- his discretion in this regard.

There being 33 million acres, as we note in the brief, for federal lands in Idaho, 12 million under the control and discretion of the Secretary of Interior and approximately 8.5 million susceptible of possible irrigation is still in federal hands.

Justice William H. Rehnquist: Was -- what you're saying that the Carey Act is the factor that the Secretary has to take into consideration in passing on any application for withdrawal of public lands?

Mr. David H. Leroy: Mr. Justice Rehnquist, it -- it is in this sense.

The Carey Act obviously, by its terms, identifies no specific lands, and we claim no entitlement as to any specific parcel.

But as to a general right of entitlement which ought to be considered by the Secretary in his classification and planning process and should have been since 1894, we urge that position on the Court.

But the District Court's position actually says is that it draws a very careful distinction, it suggest a very careful balance between the rights of the State and the rights of the Secretary rejecting the Idaho in presenti argument rejecting the U.S. argument about right discretion, instead holding that there's a right of entitlement under the Carey Act created by the Congress.

That that right is not so absolute that the State can perfunctorily select any particular parcel of land that wishes for the Secretary has other withdrawal authority.

But third, if the State meets the Carey Act conditions, the Secretary has no unfettered discretion to deny applications.

Fourth, if the land sought has been withdrawn for other purposes, the State may apply for reclassification which petition should be handled in the ordinary course and subject to judicial review.

And fifth, since Congress prescribed acreage entitlements to the State in 1894, the Secretary should preserve suitable amounts to honor applications as they come in overtime.

That's exactly what the judge's decision did.

And we suggest that that is a proper interpretation of the legislative history, the language of the statute, and it properly addresses the administrative and contemporaneous construction given to it by the agency.

The language of the statute --

Justice John Paul Stevens: May I ask you another question?

Under your understanding of the District Court ruling, as long as at least 3 million acres remained unclassified for any purpose under desert land, could therefore -- thereafter be selected by Idaho, would there be any violation on the judgment?

Mr. David H. Leroy: Not -- not automatically, Your Honor, for the acreage and entitlement and reservation and potential for Carey Act application was there.

Justice John Paul Stevens: If that's true, the -- is it not also true that -- that if -- if the Secretary purported to withdraw so much that there was less than 3 million available, you would then have a right under the judgment to enjoin him or to prevent him from making that additional withdraw?

Mr. David H. Leroy: Yes, Your Honor.

Justice John Paul Stevens: And anything that invaded the 3 million would be subject to reclassification made available.

But if that's all true, how can there be a present controversy until you approach the area of withdrawal that would invade the 3 million figure?

Mr. David H. Leroy: There's a present case or controversy because in this particular identification of acreage, a part of that 3 million acres the IBLA and the Secretary assert that they can -- they can reject to have right in their absolute discretion or opportunity to -- to petition them for a contract on that acreage.

Justice John Paul Stevens: It isn't the best way to challenge that is by making a request for some of that land and having them do it.

If they never -- if they -- they say have the power, but suppose they never exercise such arbitrary power, that they always grant your applications, why do we have to decide the question?

Mr. David H. Leroy: It's -- it's our -- it's our suggestion of the Court that IBLA exercises exactly such an absolute discretion because they intended to and so they did in this particular partial in acreage.

Justice John Paul Stevens: But not the 27,000.

There's -- that's withdrawn land.

Mr. David H. Leroy: Well, the -- the partial is withdrawn.

Justice John Paul Stevens: They were complaining that they gave the wrong reason for something they have a perfectly lawful right to do, if I understand you.

Mr. David H. Leroy: And they are suggesting that they will not entertain, as the District Court suggested they must or petition for reclassification because they have the absolute discretion under the Carey Act not to do so.

But nothing about the language of the Carey Act, nothing about the legislative history of the Carey Act, nothing about the contemporaneous construction of the Carey Act suggest any such absolute discretion of the Secretary.

Justice Byron R. White: Mr. Attorney General, I -- I took it -- I take from what Mr. -- if I -- if I didn't misunderstand Mr. Smith, he said part of this 27,000 acres had been withdrawn for stock-driving purposes.

Mr. David H. Leroy: Yes, Mr. Justice White.

In fact, that's accurate.

The -- there were four separate types --

Justice Byron R. White: But not all of it.

Mr. David H. Leroy: No.

As to -- as to a federal reclamation project, as to a wildlife reserved, as to some State land grant exchanges, Idaho did not press its claim forward.

Showing again that it's -- that it's eminently possible for the State and the Secretary to work in this fashion then acknowledge the Secretary's other duties if the Secretary does not have any absolute discretion as the search flaws from the Act of 1894, and that discretion is simply not there.

A study of the statutory language with reference to the contract authority of the Secretary, the special duties detailed the Secretary -- of legislative debates and discussions, none of those factors and features make any mention of any general and unfettered discretion to the Secretary.

The contract contemplated by the Carey Act is nothing more or nothing less an -- an agreement of feasibility as to certain lands and a protection to States and the settlers on those lands which are identified and may guarantee that as to dollars expended and efforts expended the States and the sellers will be protected.

Congress had already, in a sense, by the terms of the Act made an offer to the States and the States accepted that offer and it was -- it was that kind of arrangement, that kind of conditional grant that the Carey Act contemplated.

In the language of the Act, the specific duties of the Secretary are detailed to accept applications, review maps and plans.

To review for their sufficiency to accomplish the irrigation and needed and desire to -- to -- as fast as adequate proof is received to issue the patents and to produce such rules and regulations but only as to the motive proof and motive procedure.

There is no general discretion encouraged or authorized in the statutory language.

And what -- and if any such discretion was intended or contemplated by the Congress, it would have been a discretion that would have to had the potential as in this case to frustrate the -- the noble purpose which Congress sought, namely, for meeting the States to go forward in the absence of federal --

Justice Byron R. White: Would you think that the State would have the -- would have the right to have -- set aside for Carey Act purposes, lands that had been withdrawn for oil shale development?

For leasing?

Mr. David H. Leroy: Mr. Justice White, again, the Secretary in the new --

Justice Byron R. White: The Secretary -- how about Idaho's claim?

Would -- would the Carey Act claim override into such withdrawal or not?

Mr. David H. Leroy: It would not automatically override write such withdrawal.

The State would have the right to make the petition, and the Secretary would have the right to balance the equities (Voice Overlap) --

Justice Byron R. White: And you adjust to -- you -- you at least have the -- the right to -- to have it shown that the withdrawal was regular and authorized by statute?

Mr. David H. Leroy: Exactly.

And -- and we would have the right to require the Secretary to review the matter.In --

So there's less than 3 million would be available, would that be permitted under your view?It clearly would not under the District Judge's analysis.

Mr. David H. Leroy: Well, Your Honor, again, we would be entitled to request other -- of the Secretary and identify and petition to him for Carey Act application in withdrawal and --

Justice John Paul Stevens: As I understand this sir, you wouldn't even have to do that.

He couldn't -- they could not invade the 3 million, they must reserve at all times at least 3 million acres for Carey Act development.

Mr. David H. Leroy: Justice White presented a harder case suggesting that lawful grants had -- had already been issued dropping us below the 3 million.

But -- but were --

Justice John Paul Stevens: Well, but that's not -- that's not true.

But now, we're talking about -- there now are more than 3 million acres available, and the question is under your interpretation to District Court's holding, could they with -- could the Secretary withdraw enough acreage to invade the 3 million and have the withdrawal for the purposes of shale oil.

Mr. David H. Leroy: Not unless either Congress modified the Carey Act or Idaho modified its terms and conditions of acceptance of the Carey Act.

The --

Justice William H. Rehnquist: What if -- what if the Secretary in response to the type of situation posed by Justice Stevens said, "I recognized the Carey Act, I recognized the oil shale act, it necessarily requires me to balance the needs for uses of public land and in the exercise of my informed discretion, I grant the oil shale act withdrawals," would you feel that you had anything more than an appeal to the Court of Appeals for abuse of discretion under the Administrative Procedure Act?

Mr. David H. Leroy: It will be our position, Mr. Justice Rehnquist, that there is a conditional entitlement in an already conceived Congressional purpose flowing from 1894, we would acknowledge that the acts and the management duties of the Secretary need to be read together.

We would not necessarily presume that a court would find that the Carey Act either was subservient to a later act or nor would be presume that it would overwrite it.

I can't -- I can't answer the question directly.

I think that I would not guess what the Court might do.

But I would say that the Congressional entitlement from 1894 would be of equal dignity in -- in before a court --

Justice William H. Rehnquist: But not on flat --

Mr. David H. Leroy: -- conditional (Voice Overlap) -

Justice William H. Rehnquist: -- but not of flat provision against the Secretary's reserving into the 3 million allocated to Idaho, if he could sustain a classification to the satisfaction of a judge reviewing it under the Administrative Procedure Act.

Mr. David H. Leroy: We would -- we would suggest that that would likely be a -- a result in court.

Justice Byron R. White: Well, that would require -- that's not -- that's inconsistent with the judgment of the District Court here.

Mr. David H. Leroy: Not so in a sense that the -- that the judge also acknowledges that reclassification procedure and judicial review are available --

Justice Byron R. White: In his opinion.

Mr. David H. Leroy: -- but in -- in the sense --

Justice Byron R. White: In his opinion.

Mr. David H. Leroy: -- in the sense that he says very directly that 3 million acres ought to be reserved, so that from time to time, applications can be made.

Yes, it would be slightly inconsistent.

Justice John Paul Stevens: Well, it's not ought to be reasonably the words that Mr. Smith called my attention to -- are -- it is likewise clear that the Carey Act conferred upon the State of Idaho a right of entitlement to 3 million acres of -- of land suitable for irrigation.

And I think you're saying that when we -- if we have this oil shale conflict problem way down in the future somewhere, we ought to decide that one that arises, which is exactly what I've been suggesting for some time here.

Mr. David H. Leroy: Well, Your Honor, there is an entitlement of entitlement flows from a Congressional act in 1894.And as to -- as to other acts including oil shale activities, they would -- they were necessarily be a reading together before a court of -- of those.

But we contend before the Court that the District Judge was correct in urging an entitlement in the nature of a -- a grant upon condition flowed from the Carey Act.

We would also urge that the -- the Department of Interior has not properly presented to the Court their contemporaneous construction of the Act.

The -- immediately after the Act in 1894, a key to the case would be a review of the regulations of the Department of Interior.

In those regulations, the first promulgated under authority of the Act was absolutely no mention of secretarial discretion.

And in 1895, report to Congress, annually made every year as House Document Number 5, the General Land Office Commissioner to the Secretary said, in characterizing the Carey Act, that this is a form of agreement to donate a million acres of desert land upon a condition and continued onward.

The Secretary of the Congress described the Carey Act as a grant condition upon the reclamation and settlement.

It's our contention that it was Interior not Idaho that first characterized the Carey Act as a grant upon condition.

And in that same year, 1895, Idaho accepted the grant of the Carey Act by legislative activity that specifically referred to the Carey Act as a grant.

The annual reports of the Department of Interior if reviewed from 1895 to 1905 contained grant language including the 1895 reference to the grant condition.

There's no discretion mentioned in --

Justice William H. Rehnquist: What did Idaho do in 1895?

Mr. David H. Leroy: In 1895, Idaho became the second State to, through its state legislature, pass the statute that -- that accepted the donation, the grant of Congress with regard to the Carey Act.

There were 12 such States in the west that accepted that and each of those 12 States, in one way or another, discussed the Carey Act by that language.

10 of the 12 States accepted the grant of Congress, the grant of Congress intended in the Carey Act.

Justice William H. Rehnquist: Do they set up a mechanism whereby private settlers could make claims analogous to the way you make mineral claims or homestead claims by locating on the property and residing on it for a year?

Mr. David H. Leroy: Yes, the purpose of those several Carey Acts were also to set up a structure whereby contracts could be entered in with construction companies to construct the works necessary to transport the waters long distances and apply water to the land and as well, contemplated boards and land commissioners to receive applications and administer the actual settlers who filed under the Act.

One of the greatest dignities in terms of the departmental position on what the Carey Act actually meant there was such rules and regulations.

There've been five such sets of rules and regulations promulgated between 1894 on the time of this particular lawsuit.

In 1894, the regulations, immediately after the promulgation of the Act, made no mention of secretarial discretion.

In 1898, the -- the word “grant” was mentioned four times in those regulations, discretion not mentioned at all.

In 1902, the word "grant" was mentioned four times, discretion not mentioned at all, except in the context of a limited 1901 Amendment.

And in 1902 regulations which provision became identical in the 1909 regulations a very careful two-step process whereby the General Land Office would review the applications and then upon their approval for that technical sufficiency, submit them to the Secretary.

The regulation said, “Upon approval, the contract is executed by the Secretary as directed by the Act.”

That regulation continued in effect in 1909.

And those 1909 regulations were in effect until repealed in 1970.

We would urge that the Secretary, by his administrative construction, neither contemplated discretion and characterized by the -- at the -- to the contrary that the Act was in fact the grant of the States.

The doctrine of contemporaneous consistent administrative construction suggest that if a statute is susceptible of two reasonable interpretations and the Department adopts interpretation A, and great deference ought to be accorded to A but it never said that if the Department adopts A in 1895 and then somehow in 1977 and 1975 switches to be contending that no discretion and no mention of discretion has become absolute discretion that the Court ought to incur -- attach any difference to the later construction.

Had Congress intended the Secretary to have any absolute discretion of this type so significant as to frustrate the statutory purpose in the great noble objective of the Carey Act, it certainly would have authorized it in clear and specific language.

We thus contend that both legislative history and administrative construction suggest no such discretion existed.

The subsequent acts by Congress indeed also characterized the Carey Act as a grant in 1896 Amendment, characterized it as a grant.

In 1901 Amendment, Congress illustrated that it knew how to use the words in his discretion with the Secretary and giving him a five year extension privilege that used those very words in his discretion.

The Secretary of the Interior in that same year, as we indicate at page 8 of our brief, issued a letter in assistance of Congress in attempting to establish what the legislative purpose and intent might be for the amendment.

And Secretary of Interior Hitchcock in that letter, four times mentioned that he characterized the Carey Act as a grant to the States.

First mentioning, “A grant made the certain States.”

Next, “Grant was a departure”.

Third, “Lands intended to be granted”, and fourth, “Under this grant.”

In the 1921 Amendment to the Carey Act, the restoration privileges to the Secretary to return lands the public domain if construction not began within three years, provided Secretary may, in his discretion, commit that Act.

Thus --

Justice Potter Stewart: Mr. Leroy, is it your view that the grant is so firm that Congress could not change its mind?

Mr. David H. Leroy: No, Mr. Justice, we would not suggest that Congress cannot change its mind.

The -- the features of the conditional grant are that no title would pass until the conditions are fulfilled, thus, we would urge that no equitable title attaches until the same.

Chief Justice Warren E. Burger: You've referred to it throughout your argument as a conditional grant, have you not?

Mr. David H. Leroy: Yes, Your Honor.

The Solicitor did not have an opportunity to mention, but a good deal of authority is placed in the brief of Interior on the Wyoming land decision reported in 1908.

We would urge to this Court that that land decision which found some discretion in the Secretary's opportunity to contract is not a proper administrative construction.

It's not consistence with the Secretary's own rules and regulations.

It's not strictly contemporaneous.

It's not -- it's based on a faulty reasoning that it is no authority, that it's not persuasive and it never was embraced by Congress nor even called to Congress's attention, and it remained obscure within the Department in that it was not even contemplated and grafted into the 1909 rules and regulations as the Secretary promulgated them some six months later.

Justice William H. Rehnquist: What's the real argument here?

Not between you and the District Court or between the Government and the District Court, but between you and the Government, because the Government, as I undertake, concedes that the Secretary's actions are subject to review and that the Carey Act has to be taken into consideration, you concede that the Carey Act isn't an outright grant.

And that the Secretary could invade the minimum amount or the maximum amount granted, if he could show sufficient justification for it.

I -- I don't see there's much difference in your position.

Mr. David H. Leroy: The difference, as I understand the Government's position, is that they say they have the absolute discretion to contemplate receiving no applications at all the receiving, no petitions for reclassification at all, to not giving us the time of day on the Carey Act.

And they also urge that if there is no entitlement of any kind whatsoever, we'd, to the contrary, contend that the Carey Act created neither an absolute grant nor an absolute discretion.

But the intent of Congress was to challenge the States to pick up a great and noble public purpose that the -- the Department of Interior acknowledged in 1895 that it was, in fact, a conditional grant, that by legislative action, the States accepted that grant and began to operate on the rules and regulations of the Department which, for 74 years, characterized both the Act as a grant and suggested that the Department of Interior and the Secretary of Interior had no authority to do anything after that technical approval but signed the contract as directed by law.

Justice Thurgood Marshall: Mr. Attorney General, exactly what did the Government deprive Idaho as of now, 1895, as of right now?

Mr. David H. Leroy: The Government has deprived those by the stands that they've taken in the IBLA and by the Secretary of Interior of an opportunity to seek any lands under the Carey Act, saying that they have in their absolute discretion.

Justice Thurgood Marshall: Did they deny you the right to file a piece of paper?

Mr. David H. Leroy: They did not deny us an access to the -- the outer office.

But they deny us access to any decision making process and they've not so granted any Carey Acts in Idaho in the last 30 years.

And it's --

Justice Thurgood Marshall: Alright.

It doesn't mean they won't do it tomorrow, does it?

Mr. David H. Leroy: They have taken the position before the IBLA that they will not in this instance --

Justice Thurgood Marshall: But -- but once you --

Mr. David H. Leroy: -- the case or controversy actually frame.

Justice Thurgood Marshall: (Voice Overlap) they denied you.

Mr. David H. Leroy: On this --

Justice Thurgood Marshall: They denied you access to the inner circle, you mean?They wouldn't let you talk to the Secretary?

Mr. David H. Leroy: No, sir.

But they will not exercise any discretion in either the State billing office or --

Justice Thurgood Marshall: And that resulted in what?

Mr. David H. Leroy: That resulted in this actual case not -- that's not being a lot of petition for reclassification with any likelihood of success.

Justice Thurgood Marshall: But you could have applied?

Mr. David H. Leroy: We did apply for both a temporary --

Justice Thurgood Marshall: But what they did, they denied you the right to apply?

Mr. David H. Leroy: Yes.

And --

Justice Thurgood Marshall: But he did apply?

Mr. David H. Leroy: We applied for both a temporary withdraw --

Justice Thurgood Marshall: You're not.

Do you --

Mr. David H. Leroy: -- and for a segregation.

Justice Thurgood Marshall: -- do you recognize or do you agree with me that it has a completely unconstitutional statute on the books?

And it applies to you and the statute says that the Secretary of Interior can either give you $1 million or no, nothing, and you have no redress from his action.

Do you have a cause of action?

Mr. David H. Leroy: Mr. Justice Marshall --

Justice Thurgood Marshall: You know, because he might give it to you.

Isn't that the answer?

He might give you the million.

Mr. David H. Leroy: But in -- in construing the statute --

Justice Thurgood Marshall: Isn't it possible that the Secretary of the Interior could rule with you in this case?

Mr. David H. Leroy: It's not possible now.

He's finally with agency action close the door and rest his position on an assertion of absolute discretion formed in 1894 Act.

We suggest there's no such discretion there.

Justice Thurgood Marshall: And that prevents you from doing what?

Mr. David H. Leroy: It prevents us from, as to these particular lands, the possibility of moving them in the Carey Act development from framing an actual case or controversy.

Justice Thurgood Marshall: So you've been denied the right to land, which you otherwise are entitled to?

Mr. David H. Leroy: Yes.

And -- and the vehicle of -- of that denial was an assertion of absolute discretion and a refusal to follow the dictate of the District Court in allowing us to petition for reclassification and determining.

Justice Thurgood Marshall: I'm not interested in all these explanations.

I'm interested in what factually injured you.

Mr. David H. Leroy: Alright.

And I've indicated --

Justice Thurgood Marshall: Are you injured?

Mr. David H. Leroy: Mr. Justice Marshall --

Justice Thurgood Marshall: If you don't have this with the human land, to use as you please.